But I recently ran across a lawsuit alleging that Common Core, an education standards program that several states have agreed upon, violates the Compact Clause absent congressional consent. The PDF of the memorandum in support of the motion for a preliminary injunction in Sauer v. Nixon, filed in Missouri state court, is here.

Formally, an interstate compact requires congressional consent. But the Supreme Court has interpreted the types of compacts that need consent quite narrowly--only if the compact infringes on the power of the federal government or on the power of non-compacting states does the compact require congressional consent.

First, the memo argues that the adoption of Common Core infringes on the power of the federal government. That's because Congress has expressly prohibited the Department of Education from establishing uniform national education standards. But DOE has aided states in adopting Common Core, inviting participating states to earn grant money and fund an interstate educational consortia. In a sense, it's a problem that the DOE is ceding federal power to the states by encouraging them to implement standards that it cannot do itself. Instead, it's ceding power that Congress currently holds--and because it's undermining Congress's clear directive, only congressional consent could cure a state's adoption of Common Core. It’s a wrinkle I haven’t considered before--the nature of the "federal power" at stake in a case like this.

Second, the memo notes that it affects the balance of power among non-compacting sister states. Educational curriculum providers and national standardized testing companies have altered their behavior in light of the compacting states' adoption of Common Core, making it difficult for non-compacting states to proceed with their own education policies without being impacted by these changes. I think this argument is a slightly more difficult case under existing precedent--it’s such a challenge now that the Court has basically said that indirect types of pressure (e.g., the pressure to conform to multistate tax regimes, etc.) are not the kinds of things that infringe on state sovereignty. In my Article (and especially the follow-up piece), I was at least able to cite to the fact that the power given to presidential electors as authorized by the Constitution had changed, at least in terms of the power those electors have. That said, precedent aside, there’s a very real impact on non-compacting sister states, and one that, I think, an original interpretation of the Compact Clause demands congressional consent.

The memo goes on to note that Common Core includes an independent governance structure with mandatory assessment of common core; that it delegates sovereign power to the structure by abiding by decisions and timelines of the consortium; that exiting the consortium requires review and approval of the consortium rather than unilateral withdrawal; and results in an exercise in power that the states could not perform in their absence, given that it dictates educational assessment outcomes of other states. These, the memo argues, are the classic hallmarks of the type of "compact" that requires congressional consent before taking effect. Finally, the memo argues that similar compacts required congressional consent, something lacking here.

Will this challenge succeed? It depends on how robust the courts read the Compact Clause--given Supreme Court precedent, courts have been reluctant to demand congressional consent. But perhaps the far-reaching nature of Common Core would be enough to persuade a court to hold the standards invalid absent congressional consent.